‘Natural-born’ doubt: Law prof takes shot at Cruz

By Douglas Ernst

Donald Trump and Texas Sen. Ted Cruz (Photo: Twitter)
Donald Trump and Texas Sen. Ted Cruz (Photo: Twitter)

A constitutional law professor at at Fordham University says U.S. Sen. Ted Cruz’s “natural-born citizen” claim only works if he ironically adopts an interpretation of the U.S. Constitution favored by liberals.

Thomas Lee of Fordham Law School wrote an op-ed for the Los Angeles Times on Sunday saying the Texas Republican must use a “living Constitution” theory to convince voters he is eligible to be commander in chief. Cruz considers himself an originalist.

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Lee said there are two principles an originalist must use to determine whether or not a person is a natural-born citizen:

  • U.S. Jus soli, or the law of soil: A child was a citizen of the sovereign who ruled the land where he or she was born.
  • Jus sanguinis, or the law of blood: A child’s citizenship was determined by the parents’ allegiance, regardless of place of birth. The law of blood would have applied to the father’s place of birth in 1788.

The professor said that only by allowing modern cultural norms to influence his reading of the Constitution, as a “living constitutionalist” would do, can Cruz deflect “birther”-type attacks on his presidential eligibility.

“It’s a neat irony: The most conservative constitutional interpreters must find Cruz ineligible to be president,” Lee wrote. “Liberals must grin and bear him. Cruz himself purports to embrace originalism as the correct view of the Constitution. To be faithful to his understanding of what the Constitution means, the senator may have to disqualify himself.”

Cruz has outright rejected such attacks since Republican presidential front-runner Donald Trump brought them up Jan. 5.

“The very first Congress defined the child of a U.S. citizen born abroad as a natural-born citizen. And by the way, many of those members of the first Congress were framers at the constitutional convention,” Cruz told CNN on his campaign bus Jan. 8. “At the end of the day, this is a non-issue.”

The senator reiterated that claim Sunday during CNN’s “State of the Union.”

“The substance of the issue is clear and straightforward. As a legal matter, the Constitution and federal law are clear that the child of a U.S. citizen born abroad is a natural-born citizen,” Cruz said.

Cruz’s mother, Eleanor Darragh, was born in the state of Delaware on Nov. 23, 1934. His father, Rafael, was born in Cuba. Cruz himself was born in Calgary, Canada, on Dec. 22, 1970, but renounced his dual citizenship with Canada in 2014.

The birth certificate of Eleanor Darragh, mother of Texas Sen. Ted Cruz (Photo: Sen. Ted Cruz via Breitbart News)
The birth certificate of Eleanor Darragh, mother of Texas Sen. Ted Cruz (Photo: Sen. Ted Cruz via Breitbart News)

Trump maintains that Democrats will take Cruz to court if he wins the Republican presidential nomination.

“I’d hate to see something like that get in his way,” Trump told the Washington Post Jan. 5. “But a lot of people are talking about it, and I know that even some states are looking at it very strongly, the fact that he was born in Canada and he has had a double passport.”

Trump Cruz birth certificate

Conservative radio hosts Mark Levin and Rush Limbaugh have repeatedly criticized attacks on Cruz’s eligibility.

“Cruz’s mother is an American citizen, was an American citizen when she gave birth to Cruz, and is, in fact, Cruz’s mother. Seems fairly simple,” Levin wrote on his Facebook page Jan. 7. “Not only that, American citizens give birth to American citizens, whether here or abroad. That’s not only common sense, it is the law. And think about it for a moment – if you follow their stupid argument, babies born of American citizens serving abroad in our military would be non-naturalized citizens ineligible to run for president. That’s stupid.”

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Rush Limbaugh was equally blunt on Monday, telling a caller, “It’s settled. Cruz’s mother was a citizen. Therefore, he is. Deal with it!”

“You can sit there all day long and try to tell Ted Cruz is not a citizen, and you’re wrong! I don’t care what you’re citing or sourcing. If it were true, Cruz would be out!”

In the wake of a new poll showing Trump has retaken the lead from Cruz in Iowa, Limbaugh said: “Trump is gonna think that what has bumped him back in the lead here [in Iowa] is focusing on Cruz’s citizenship, his eligibility. So you can expect Trump to double-down on this now. My guess anyway. … And all eyes will be on Cruz to see how he plans to deal with it.”

Limbaugh said earlier in the show that “natural-born citizen” was not defined in the U.S. Constitution.

A Quinnipiac University poll released Monday shows Trump leading Cruz by 2 percentage points in Iowa, the Hill reported.

Trump leads his Republican opponents with 31 percent support compared to Cruz’s 29 percent.

Quinnipiac questioned 602 likely Republican caucus-goers in Iowa between Jan. 5-10. The survey’s margin of error is plus or minus 4 percentage points.

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